March 01, 2006

Some Thoughts on Ari and Cathie

by emptywheel

Summary: In this post, I muse about ways that Libby might try to attack the credibility of two of the most important witnesses against him, Cathie Martin and Ari Fleischer. I think that, in the past, Libby tried to undercut Ari's value as a witness in an IIPA trial, an attempt that is now useless. I suspect that Libby is now stuck in a Catch-22. He can claim Ari and Cathie are testifying now because they were involved in the leak in some way and they're trying to gain immunity in exchange for testifying. But if they were involved, it's almost certainly because he ordered them to be involved. So if Libby adopts this approach, he'll basically be making the case that he was involved in a conspiracy to out Plame.

I've been thinking a lot about Ari Fleischer and Cathie Martin of late. In all the talk about Libby's defense strategy, we've had no discussions about how Libby plans to undermine the testimony of Ari or Cathie Martin. Yet Cathie will testify that she spoke to Libby about Plame sometime before July 8 and again (this time in the presence of Dick) on July 12. And Ari will testify that he spoke to Libby about Plame on July 7. The testimony of these two people, by itself, proves two aspects of Libby's lies to be lies: It proves he knew about Plame before Russert "told" him about her identity (and that he didn't forget that Dick had told him before, as he claims). And it proves false his reason for saying (or claiming he said) he heard of Plame from journalists, that he wasn't sure whether it was true or not. Here's an excerpt from Libby's grand jury testimony:

I was very clear to say reporters are telling us [about Plame] because in my mind I still didn't know it as a fact. I thought I was -- all I had was this information that was coming in from the reporters. (20)

Part of Libby's lie, remember, is the "he forgot that Dick had already told him about Plame's identity" line. So when he purportedly heard it from Russert, "it was if he were hearing it for the first time."

But if he had had a recent conversation with Martin and one three days earlier with Ari in which he talked openly and definitively about Plame being CIA, then the whole "I forgot what Dick told me" story pretty much collapses (to say nothing of the fact that he had had a conversation with Judy Miller on July 8; but I figure Judy's testimony is so untrustworthy I don't expect Fitzgerald to invest much in it until he gets her to really tell the truth).

So how is Libby going to answer this part of Fitzgerald's case?

Ari and the Red Herring, the Sequel

I've been saying for months that I thought Rove and Libby were trying to undermine Ari's credibility with their leaks about the INR memo last summer. I fine-tuned that theory later when it became clear that my suspicions--that Ari was cooperating--had proven to be true. It basically was supposed to work like this.

There were two points to the attack on Ari last summer. First, the insinuation that Ari had read the INR memo.

On
the flight to Africa, Fleischer was seen perusing the State
Department memo on Wilson and his wife, according to a former
administration official who was also on the trip.

Then, the rumor that Novak had called Ari on July 7, and that it was unclear whether Ari called him back.

On the same day the memo was prepared, White House phone
logs show Novak placed a call to White House Press Secretary Ari
Fleischer, according to lawyers familiar with the case and a
witness who has testified before the grand jury. Those people say
it isn't clear whether Fleischer returned the call, and Fleischer
has refused to comment.

The implication was, I'm increasingly convinced, that Ari returned Novak's call on July 8, when we've learned Novak's first source told him of Plame, and that therefore Ari was the first person to tell Novak of Plame. Never mind that someone leaking on Ari's behalf denied ever seeing the INR memo. You'd expect an Ari surrogate to lie if he were at risk of an IIPA violation, wouldn't you?

This attack does several things. First, it points to Ari as the first leaker of Plame's identity. It leaves open that Ari is the one guilty of the IIPA violation. And it provides a way for Ari to have learned of Plame's identity without any kibbitzing from Libby or Rove. That is, it sets him up as the guilty party, and buries any evidence that Libby or Rove conspired to out Plame.

Could Ari Be Mr. X?

Now, before I consider the effectiveness of this attack, let me expand my Ari musings to explain why Ari's possible role in leaking this is all muddled. I said in October that I was close to convinced that Ari was Mr. X, Novak's first source and Pincus' July 12 source (which would, of course, require a call from Africa to DC, but no matter). But that was before Woodward admitted he had learned of Plame's identity in mid-June. And significantly before Novak implied that his (Novak's) source and Woodward's source were one and the same, and that that source was well known to Bush.

Bob Woodward
speculates that his source is the same as my source. He says that’s the
case. He is not going to reveal this name, and certainly I am not
either until such time as this person comes forward and says he wants
his name to be revealed.

I am confident the president knows who the
source is. I would be amazed if he doesn't. So I think, don't bug me.
Don't bug Bob Woodword. Bug the President as to whether he should
reveal who the source is.

Note, I'm not sure whether Woodward really did go so far as to say that his source was the same as Novak's. I think this is the conversation where Woodward is alleged to have said his source was the same as Novak's (though I await Jeff or pollyusa or Tom Maguire to tell me I'm looking at the wrong document):

“His source was not in the White House, I don’t believe,” Woodward said
of Novak over a private dinner at the Institute of Politics on Dec. 5.
He did not indicate what information, if any, he had to corroborate the
claim.

Woodward only implies he knows who Novak's source is, not that they had the same source. So it's possible Novak was trying to spin the story, as is his wont, to get the press of his back and possibly, to cast suspicion away from his original leaker (or Woodward's leaker).

That said, is it still possible that Ari is Mr. X, the person who told Pincus and Novak and, possibly, Woodward?

To answer that, we'd first want to figure out if Ari even knew of Plame's identity in time to leak it to Woodward in mid-June. It's not entirely clear from the passage in Tatel's opinion whether Ari already knew of Plame's identity when Libby told him about it on July 7 or not. There's certainly nothing that indicates Ari didn't know of Plame's identity.

For example, then-White House Press Secretary Ari Fleischer recalls
that over lunch on July 7, the day before Libby’s meeting with Miller,
Libby told him, “[T]he Vice-President did not send Ambassador Wilson to
Niger . . . the CIA sent Ambassador Wilson to Niger. . . . [H]e was
sent by his wife. . . . [S]he works in . . . the Counterproliferation
area of the CIA.” (II-545-47.) Describing the lunch as “kind of weird”
(II-590-91), and noting that Libby typically “operated in a very
closed-lip fashion” (II-592), Fleischer recalled that Libby “added
something along the lines of, you know, this is hush-hush, nobody knows
about this. This is on the q.t.” (II-546-47.) Though Libby remembers
the lunch meeting, and even says he thanked Fleischer for making a
statement about the Niger issue, he denies discussing Wilson’s wife.
(I-108-09, 156, 226-27.)

So it's possible, though unclear, whether Ari would have had a way to know of Plame's identity in mid-June when Woodward received the leak.

Assuming, though, that Woodward's and Novak's sources are the same (we'll leave aside Pincus' for now), and assuming Woodward and Novak are both telling the truth, it's impossible for Ari to be Mr. X. While it's certainly plausible Bush would know if Ari were the leaker, Ari would by any measure be considered to be "in" the White House at the time of the leak (presuming that Woodward was speaking the past tense when he said, "was"; had he meant Mr. X's current status, he'd say "is"). Still, I wouldn't rule anything out, since Woodward and Novak are both notorious liars, one in the service of source protection and the other in the service of puffery and partisanship.

There is, however, the possibility (until Jeff or pollyusa or Tom Maguire correct me on this point) that Woodward's source and Novak's source are not the same, and Woodward knows of Novak's source some other way. In which case, I think it's still possible that Ari is Woodward's source and could be Pincus' source, assuming the timing from an Africa call worked out. Possible, but unlikely.

In fact, the best evidence that Ari wasn't involved in the primary leakage of Plame's identity is John Dickerson's story, in which Ari "walked him up to" Plame's identity, without revealing it. That is, we've got evidence Ari didn't reveal Plame's identity later in the week. Which makes it less likely that he did early in the week.

Impugning Ari and Cathie

Which brings me back to Libby's possible strategies for undercutting Cathie's and Ari's testimony.

You see, the summertime leak strategy might have worked all well and good to cast suspicion on Ari if Libby had been charged with violating the IIPA. In that case, you would be presenting another possible leaker with a way in which the leaker learned of Plame completely independent of Libby. It would devolve into a case of Libby's word against Ari's (along with Fitzgerald's other evidence, but we'll leave that aside for now).

But this attack on Ari does nothing to impugn his credibility in the current perjury case. If Ari had come forward and admitted to being Woodward's and Novak's and Pincus' source (just pretend), it would be hard to argue he'd lie about a conversation with Libby. (I don't think it likely in any case, because Fitzgerald would not likely give Ari immunity if he were in violation of the IIPA charge, since it would mean he was given immunity in a more serious crime--IIPA--to testify in a less serious crime--perjury.)

Consider what it means, if I'm right that Libby was trying to frame Ari last summer. It means he knew Ari would be a plausible leaker. And I do think Ari would have been. Partly because he's a schmuck. But also because he was bordering on illegal leaks all week in his press briefings. And because Ari had come close to telling Dickerson and (IIRC) Isikoff about Plame's identity.

But I strongly suspect that Libby knew of those illegal leaks because he had ordered them.

I have no evidence that Libby directed Ari how to respond to the press the week of the leak. We know Libby thanked Ari for his July 7 statement. And we know Libby was sharing sensitive information, which Ari found to be unusual. And we do know that Libby revealed Plame's identity in the context of a discussion of how to respond to the Wilson allegations.

Mr. Libby testified in the grand jury that he had contact with
reporters in which he disclosed the content of the National
Intelligence Estimate ("NIE") to such reporters in the course of his
interaction with reporters in June and July 2003 (and caused at least
one other government official to discuss the NIE with the media in July
2003). [emphasis mine]

I don't know that this is Ari; I think it just as likely it was Tenet or someone else. But whoever it was, it is likely the leaks took place before July 8, when Libby was himself leaking the NIE to his buddy Judy (and therefore, more likely Libby ordered Ari than Cathie). It may not prove Libby was ordering Ari to leak classified information. But he was ordering someone to do so.

We also know that Cathie participated in a strategy session with
Libby about how to respond to press inquiries about Plame. Given that she had this strategy session with two superiors, Cathie may have felt obliged to carry out whatever strategy Dick and Libby and she devised on July 12. (Cathie's participation in this strategy session makes me strongly suspect she might be Pincus' July 12 source.)

So here's my supposition. In one form or other, Libby may have ordered Ari and Cathie to leak information relating to Plame. Of course, if they did, then both have an incentive to come clean with Fitzgerald, get immunity, and testify against Libby. If I'm right, Libby could just claim that they're lying to avoid their own guilt. It's a similar strategy to the one I think they were attempting against Ari last summer.

But as soon as he does that, Fitzgerald can start building the case for a conspiracy to out Plame.

Comments

Good work, EW. I'm grateful you are still turning these questions over in your mind. I'm sure the White House was expecting IIPA charges, and was thrown a curveball by Fitz's more limited (surgical) perjury and obstruction counts against Libby alone. But leave it to you to use new information to unwind all of last summer's spin about Ari.... No doubt you are right: they were setting Ari up as the "leak" fall guy, and I'll bet Rove's fourth round of grand jury testimony was tailored to it.

It may be a churlish thing to say, but Scooter Libby should have known better than to sign on to Rove's "blame the Jew" strategy.

I didn't do good collection on Woodward, so I'll go with your source. He did do a long interview with Schanberg at the Voice, I believe.

Anyway, I'm trying to get an answer out of Maguire on the nature of Libby's defense, since he's likely to be able to have a more sympathetic and accurate account of it, but best as I can tell, Libby is going to get around some of the difficulties you mention at the start by claiming that when he talked to the FBI in fall 2003 and then to the grand jury in spring 2004, he just misremembered the whole episode - misremembered that when he talked to Russert he specifically didn't remember what he'd heard from Cheney or anyone else about Plame, never remembered at all a mention of Plame in the conversation with Fleischer, and so on. Maybe this is too lame, but otherwise I think he gets into troubles with the specifics. So my guess is that they're going to make a big picture defense in this regard: Libby was busy with the survival of the country, both in June-July 2003 and when he testified, at neither point was the Plame business of much interest to him, so the fact that the whole account is botched and mixed up in a way that is hard to square with any reality we live in makes perfect sense, and he shouldn't be held accountable for it. There's no need to confront the specifics of Libby's account because the whole thing (except for a few points where maybe Libby is more reliable than the journalists) doesn't make sense for the very good reason that Libby wasn't focused on making sense about Plame.

I take it the main problem with this (or among the main problems) is that in fact Libby testified to an internally consistent account that is not just contradicted here and there by other witnesses, but contradicted by them all together on points that all have to break Libby's way for his story to hang together. So the fact that he is contradicted on so many of these points is indicative of an intent to deceive rather than just a totally blown misremembered story. Then there's also presumably going to be evidence entered of just how obsessed Libby in fact was with the Wilsons. And evidence of his meticulousness and so on.

Some other things that I think will hurt that "general stupidity" defense.

Libby remembers very clearly leaking the NIE to Judy, for reasons that relate to defending the case for war. So obviously he does remember clearly.

Libby's story was internally consistent to hide certain facts, such as the fact that he spoke with Judy in June (and, as far as we know, completely lied about having met with Judy before July).

I susect that Cathie Martin was in the June strategy session (in fact, I think it quite possible she spoke to Pincus then, as in July, which would explain why someone besides Libby might have spoken to Pincuns). In any case, if you've had two strategy sessions with Dick, that suggests this is pretty important.

I also wonder whether Fitz has the Frances Fragos Townsend smear that Waas talked about. It seems you could argue that Libby was very busy with smears of all kinds.

I also think the "I forgot" defense doesn't work as well when you provide very clear, specific answers to questions. Had Libby just said, "I forget" back in 2003 and 2004, then he'd have more of a leg to stand on. Then of course, it might not have postponed things until after the election, so...

First of all, I saw you use it over at fdl today too, and I have to say I love "Nuts" as an exclamation of unhappiness, it has a sort of old-fashioned but not dated quality to it.

I agree the general stupidity defense has a number of problems, which is part of what leads me to believe that can't be doing justice to the defense Libby's lawyers intend to mount. One very specific thing, though, in response to Mimikatz, especially since I've seen this mentioned elsewhere recently: Libby's Wilson scrapbook or notebook or whatever. I think that may not be relevant. If I'm not mistaken, the scrapbook was reported in this LAT article from October, and there is no question that some of the material in there -- regardless of whether that article is, as it appears, a throw-Scooter-from-the-White-House-train article -- may come back to haunt Scooter at his trial. I especially like the Matalin quote about how detail oriented and careful Scooter was on all matters large and small. But the business about the scrapbook appears to date only from April 2004, when Wilson published his book. There is also discussion of Scooter's obsession before that time, though what documentary form it took is less clear. It also appears that Bartlett shut down the scrapbooking in April 2004 as well, which is part of what leads me to believe the story was driven by the White House distancing itself from Libby.

One thing that's interesting is taht Fitz only subpoenaed material (including Libby's notebook) from very limited periods: a few days in May, then June through July, a few more days at the end of July, the days from when the case got recommended in September through mid-October.

In other words, if there is a complete scrapbook, Fitz is only getting it NOW, and that only because Libby went expansive with document requests.

1) I still don't understand why, if Cathie Martin is the "former member of the communications staff for [OVP]" in the Fitz Affy (p. 12), her name is redacted. It had been widely publicized that she was mentioned by title in the indictment, why did the appeals court feel the need to keep her name secret? Addington, Grossman and Edelman's names are all unredacted, yet they were only identified by title in the indictment. It is interesting to note that "Mary Matalin" would also fit exactly in the redacted space (I did my MS Word recreation thing again). Mary Matalin *could* be described as a "former member of the communications staff", if Fitz wanted to preserve GJ secrecy a la Scooter's "former Hill staffer" attribution. Note that I am not suggesting that Mary Matalin *is* the redacted name, but I still am at a loss for why they kept Martin's name redacted.

2) Maybe I'm just obtuse, but I still think that Robert Joseph is a good candidate for Mr. X, particularly if Mr. X is the same for both Woodward and Novak. Jospeh is considered a "scholarly", if hawkish, figure, certainly not a political hack (though I think his recent actions at State certainly would provide ammo to those who would beg to differ). In any case, one definitively wouldn't call him "partisan." Joseph also would probably have "need to know" for Plame's covert ID given his work at the NSC on counterproliferation issues.

To somewhat substantiate my gut feeling, I also have the NYT article of Novemeber 18 by Douglas Jehl and David Johnston speculating on Woodward's source, where it is specifically stated that Robert Joseph was among "those who declined to comment" about being Wodward's source. Aides for Wolfowitz, Rumsfeld, and Armitage never returned the reporters' phone calls. All the other likely suspects had issued denials.

It's also possible, as EW speculated, that Rumsfeld might have been Mr. X, but I just don't see him on the phone talking to Novak.

First, the only reason everyone and their mother believes Mr. X is not a partisan gunslinger is because Novak made the claim in a letter that has been proven to be demonstrably lies on many counts and is suspected by Fitz (per Waas) of being part of a cover-up, the product of Rove and him getting together to concoct a story to tell investigators. I can think of few less reliable claims in the whole Plame Affair.

Second, recall that Laura Rozen's best source on Plame told her that the person who told Woodward had lied about telling Woodward. Since Laura Rozen's best source on Plame is probably her good friend Murray Waas, who is of course all of our best source on Plame, I'd give that some credence.

I still think Dick or Hadley are good candidates for a unified Mr. X theory. Or that it's possible that there is no Mr. X (that Cathie Martin is Pincus' source, Libby or Hadley Novak's source, and Bush Woodward's source). I also think the whole notion of need to know has gone out the window. We know that Grossman shared Plame's CIA employ and we know that Bolton's shop probably knew and shared the info (via Fleitz). And that WHIG learned all of this, presumably. So pretty much anyone in that crowd has to be considered a possibility.

Mr. X is Richard Bruce Cheney. There, I said it. If I'm wrong, I'll eat a quail. The thing about Libby's defense is that it's a defense against IIPA, not against perjury and obstruction. He has no defense against the perjury charge. His only hope is to run out the clock and hope that Bush is in a position to pardon him. I'm starting to wonder if Fitzgerald is planning on running out the clock on the whole bunch of crooks. If he lets Libby keeping dragging this out, he doesn't have to file the conspiracy charges until after Bush leaves office. At that point, it doesn't matter who wins the 2008 election, nobody's going to want to pardon Cheney and I doubt even a Republican would pardon Bush when the full extent of his crimes in this case (not to mention the rest of his misdeeds) are known. If the Democrats can avoid a complete breakdown and win back Congress in 2006, things will get really interesting. Luckily, they'll have the whole NSA abomination to investigate and they can leave Fitzgerald to blow open this case. When he indicts Cheney, Bush will be totally stuck.

Mary Matalin is an interesting figure to me. She comes off on K Street as such a true believer (she must be because she's not much of an actress). But she's a true believer based on purely social reasons: these people are her friends (the kind of people you can talk to and hunt with and who will find money for you when you need money the most). Thanks for more great work, wheel.

I always revert to believing Dick is Mr. X. But then I keep trying to keep an open mind, about Hadley and so on.

That's actually part of the reason I'm curious about the Novak/Woodward discrepancy above. I strongly suspect that William Jeffress is just recycling this give-and-take in the court room last week, asserting that SAO is not in the WH and so forth. But if he is, then he may be capitalizing on what could be a Novak spin, the notion that Woodward and Novak had the same source.

Let's assume they didn't, and Hadley is the source for one (and, likely for Pincus, though I'm increasingly leaning towards Martin for that). By saying it's Hadley, you throw suspicion off of Dick. Voila, Hadley gets indicted for a Novak related leak, and everyone assumes Dick didn't leak.

Bush is Woodward's source. Here's what happened. During the last week of October, 2005, Rove, in his last-minute attempt to avoid being indicted, ratted out Bush for leaking to Woodward. On the morning of October 28th, before handing down the Libby indictment, Fitzgerald went to Bush's lawyer and told him that Bush would have to come clean. By Nov. 3, 2005, Bush had confirmed the story and Fitzgerald contacted Woodward.

If you had elaborate notes, and the FBI wanted to talk to you about something, and it could get nasty

. . . . wouldn't you review those notes before making your statements to the FBI?

If the notes are classified, which seems certain, then they must be stored in a secure location. And they are probably logged in and out. So if Libby checked (or didn't check) his notes before talking to the FBI, there may be a record.

I can't wait to get the actual transcript of last Friday's hearing -- which, by the way, the court reporter, who I talked to, said should be ready by Monday -- since the reports have been so fuzzy. But it is interesting that the AP notes that there is a taped interview of Mr. X with investigators. Does that enable us to eliminate anyone, who may have testified to the grand jury but not been interviewed by investigators, for instance? Also, one indication that Novak and Woodward did have the same source is that that's the way the WaPo covered the story, and I suspect they're in a position to know but not tell, and under those circumstances they would not publish information they knew to be false or misleading.

But it will be much easier to see what's what once we have the actual transcript. For what it's worth, I think it would be great to get a collective going of people willing to chip in for these things, as they're expensive - 83 cents a page and not available on PACER. (The court reporter told me that between last Friday's hearing and the still unavailable, public part of the Feb. 3 hearing, we're talking about 130 pages.) The court reporter told me that they can be emailed, but only after receiving payment. So it would be great to get him payment for these things in advance and just have him email them to, say, emptywheel, who could post the things as soon as they're available. And I suspect there are enough Plameologists who are not freeriders to make it feasible. I'd contribute.

There's a new item up on the PACER system, which includes a heavily redacted affidavit from Fitzgerald having to do with the reporters and the overall course of the investigation, from February 16. viget, how about looking at p. 14, where Novak's sources are named but redacted, although one of them is obviously Rove.

Ok, it's late and I may be fuzzy, but there may be two really interesting pieces of news l in the newly released Fitzgerald affidavit, and I may have to take back the issue I raised above about Mr. X's interview with investigators per the AP (although maybe not). In any case, on p. 15 of Fitzgerald's affidavit, Fitzgerald is talking about the identity of Woodward's and Novak's source, and from this paragraph (43) it really does appear that it's the same person, as it starts off by talking about "[t]he one significant piece of information that Libby is not being told is the identity of [redacted] as a source for [redacted]." After a full line that is redacted, it then goes on

Moreover, LIbby has been given a redacted transcript of the conversation between Woodward and [redacted] and Novak has published an account briefly describing the conversation with his first confidential source (redacted).

So either Woodward took really good notes, or there is a recording of that first conversation. So is the AP's reference to a taped interview with investigators a garbled reference to a taped interview with Woodward?

In paragraph 44 of the affidavit, which has to do with What "Documents" Pertaining to Reporters the Government Has Produced, Fitzgerald observes that they've produced all documents to the defense received from Cooper (regarding Libby or Rove), all documents from Miller, all documents from Pincus and all documents from Woodward pertaining to Libby. It goes on to say there are no responsive documents pertaining to Russert -- which is interesting, in light of earlier speculation that there might be some kind of record of their conversation. But I take the main implication to be that Fitzgerald is not producing documents received from Novak, though I don't know if that is significant, since all the reporters mentioned had relevant contact with Libby and Novak apparently did not. The next paragraph, in any case, has four parts -- alas, all redacted -- on What "Documents" Pertaining to Reporters the Government Has Not Produced.

What I keep wondering about is Waas' story that Novak spoke to someone in OVP just before the Plame leak to receive the smear on Frances Fragos Townsend. Now I've suspected it's Libby, but this makes it sound like it's not. So who else from OVP would push a campaign against Townsend? (Actually, the campaign fits the MO of Bolton to a T, though given the content of the smear, that she wouldn't support extraordinary renditions, it might more likely be Dick or Addington).

In his account of his testimony, Woodward says he knew that the Ambassador in Pincus' June 22 article referred to Wilson. I suspect this means he didn't know in time for the Ambassador reference in Pincus' June 12 article, the one OVP was called on.

ew - I'm more than happy to email you a copy if you tell me where to email it, or I can email one to TNH email. I'm a little wary of posting a link here, just because I want to make sure I don't get charged on PACER every time someone downloads a copy, and I'm unsure if that would happen.

Hold on, hold on. Fleischer seems to fit as well. I need to find a space where the first name would appear in a closed space to figure out which one it is (though, since Fitz refers to people alternately as Mr. Armitage and Mr. Fleischer, it's hard to be sure.

I was just doing the same thing in my clumsy way, and if you look at paragraph 52, note that "agreements" appears two lines above the space of the last name of Woodward's source, and crossing off letters shared by "agreements" and "Armitage" does make it look like it would fit pretty perfectly to me.

Ha! The Note totally botches its report on the document, offering a quotation about Rove telling Libby about his conversation with Novak, with Rove's name redacted, and assuming that the redacted person is actually Novak's first source.